When Menachem Zivotofsky was born 12 years ago in Jerusalem, his parents wanted his U.S. passport to accurately reflect his place of birth. It’s a reasonable request. But when they asked the State Department to list “Israel” as their son’s birthplace, the agency refused.
On Monday, the United States Supreme Court, in a heartbreaking 6-3 decision, struck down an act of Congress that would have given the Zivotofskys — and countless other parents — what they wanted.
For the last 60 years, U.S. policy has refused to recognize Jerusalem as the capital of Israel in an effort to remain “neutral” on a “political question” that has already been settled by facts on the ground. As Justice Antonin Scalia correctly observed in his dissent in Zivotofsky v. Kerry, there is “universal agreement on the real-world fact that Israel controls the city of Jerusalem.”
But neither that reality nor the federal law, the Foreign Relations Authorization Act passed by Congress in 2002, was able to sway the majority of the court, who endorsed Solicitor Gen. Donald B. Verrilli’s argument that the legislature overstepped its bounds when it commanded “the executive branch to issue diplomatic communication that contradicts the government’s official position on recognition.”
In her oral argument last November, Zivotofsky’s lawyer, Alyza Lewin, did her best to persuade the justices that the case was not about U.S. foreign policy, but something far less incendiary — merely the wording of an American’s passport. That nuanced distinction did not carry the day.
According to some legal experts, this case was a longshot from the beginning. They argue that it presented a clear separation of a powers issue that has to be resolved in favor of the executive branch, since it is the one charged by the framers of the Constitution, as well as ensuing custom and statutes, with setting and executing the country’s dealings with foreign states.
Especially given the uphill battle they faced, both in terms of the law and the powerful international forces aligned against them, Lewin and her father/law partner, Nathan Lewin, deserve to be saluted for their hard work and perseverance on this case, qualities that have become their hallmark as legal advocates for religious freedom and civil rights.
But as much as we feel emotionally bound to their arguments and Zivotosky’s own heartfelt connection to Israel — “I’m an Israeli,” he said on the steps of the Supreme Court last fall, “and I want people to know that I’m glad to be an Israeli” — our nation’s highest court has ruled on the issue, and we must accept that judgment. That said, young Mr. Zivotofsky is still right to feel pride for his country, his people and for Israel’s capital.